December 3, 2010

Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: “I’m old and falling apart.”) I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.

This is a not-too-subtle hint to the older Justices to retire. Please vacate your seats and give some younger folks a shot. And give the young President an appointment. See? We will notice you as you go about giving innocuous speeches and publishes simple enough essays in the New York Review of Books — especially if you tell us you wish you voted differently on some case we journalists disapproved of or indicate you "her dismay at seeing some of her own work 'dismantled' by the current court." Come on out here where we can help you burnish your reputation.

UPDATE: I rewrote the headline, because it was so boring I was afraid no one would read through to the possibly amusing sarcasm.

OK. So Linda Greenhouse is mostly impressed with her own lefty opinions, and thinks highly of judges who (come to) share them. And she's a big booster of courts when they enforce those views on the country. But what does it say about an institution whose members are "enfeebled by age" yet can't be removed and are still doing the enforcing? It's one thing to champion an institution that is anti-democratic (by design), and cabined in its policy choices only by the limits of lawyerly inventiveness in construing open-ended text (by faute de mieux). But "enfeebled by age" as well?

The problem with Greenhouse's love affair with policy-making by constitutional adjudication is not that there aren't theories aplenty that make such an approach to constitutionalism sensible. Instead, it's that there is no institution capable of doing it consistently in a principled way (let alone agreement on the underlying neutral principles). When the decisionmakers are judges "enfeebled by age" or otherwise, it's easy to dismiss the results as illegitimate -- particularly when the interpretation of constitutional text usually (and ever so happily) accords with the judges' own policy preferences. People (Greenhouse especially) don't want the justices to be (or even to be seen to be) above-the-fray types. She (and perhaps Ann as well) want justices to be engaged in the policy battle.

But that only works until the rubes figure out the game. When they do, judges come to be seen (at least in the controversial cases) as political actors pure and simple. There's not much left to the judiciary's mandate of heaven at that point -- the picture of blind Justice objectively enforcing neutral principles gives way to a picture of smart but partisan hacks enforcing the party line through verbal pyrotechnics. That's pretty much what uber-lefties say about Scalia (and even more so Thomas), or what uber-righties said about Souter. It was also the idea behind FDR's court-packing plan and (if you push past the froth) is the animating idea for Greenhouse's plea for some early retirements.

As a partisan model of judicial decisionmaking in constitutional cases has set it, the resulting train-wreck (most clearly visible in judicial confirmation battles) is just getting worse with time. The fireworks would be truly spectacular if Greenhouse got her wish, and one of the SCOTUS' oldsters (Scalia, say) took her up on retirement, allowing the current POTUS to name a replacement.

Breyer is about 70, I think; and Ginsburg pushing 80. But she's in good shape, and she looks like the kind of woman who could be active and healthy well into her late 80s.

Ginsburg could outlast Obama, and the Republican (FSM willing) that replaces him in 2012, and retire during the first term of Chelsea Clinton.

This should be interesting, to see how the screws are applied to these two over the next two years.

And I wonder how another appointment of a hard-line leftist like Kagan or Sotomayor will affect Obama's chances in 2012. Maybe Ginsburg would be smart to wait til after the election -- if doesn't retire now, Obama has a higher probability of re-election, and she could then retire during his second term.